Citation Nr: 1822849
Decision Date: 04/16/18 Archive Date: 04/25/18
DOCKET NO. 14-30 797 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for L5-S1 anterolithesis, spondylosis with muscle spasms prior to March 1, 2016 and in excess of 20 percent thereafter.
REPRESENTATION
Appellant represented by: National Association of County Veterans Service Officers
ATTORNEY FOR THE BOARD
E. Vample, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 2011 to July 2012 and from May 2015 to February 2016.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 and June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.
FINDINGS OF FACT
1. Prior to March 1, 2016, the Veteran's spine disability has been characterized by forward flexion greater than 60 degrees but not greater than 85 degrees; forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes have not been shown.
2. From March 1, 2016, the Veteran's spine disability has been characterized by forward flexion greater than 30 degrees but not greater than 60 degrees; forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, have not been shown.
CONCLUSIONS OF LAW
1. Prior to March 1, 2016, the criteria for a rating in excess of 10 percent for a spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2017).
2. From March 1, 2016, onwards, the criteria for a rating in excess of 20 percent for a spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 5242 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Notice and Assistance
VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by a way of a letter sent December 2012.
VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, private treatment records, service treatment records, VA examination reports, hearing testimony, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).
Increased Ratings
The Veteran is seeking an increased rating for his service-connected L5-S1 anterolithesis, spondylosis with muscle spasms.
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994).
Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017).
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007).In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2017); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.
The Veteran filed a claim seeking an increased rating for his service connected L5-S1 anterolithesis, spondylosis with muscle spasms. Prior to March 1, 2016, the Veteran received a 10 percent rating for his L5-S1 anterolithesis, spondylosis with muscle spasms under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (addressing degenerative arthritis of the spine). Ratings under this diagnostic code are assigned based on the General Rating Formula for Diseases of the Spine or based on incapacitating episodes, whichever results in the higher evaluation. Under these bases, a 20 percent evaluation is warranted when the evidence shows:
* Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or,
* The combined range of motion of the thoracolumbar spine not greater than 120 degrees; or,
* Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
A 40 percent evaluation is warranted when the evidence shows:
* Forward flexion of the thoracolumbar spine to 30 degrees or less;
* Favorable ankylosis of the entire thoracolumbar spine; or
* Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.
38 C.F.R. § 4.71a, DC 5242.
In the alternative to the above schedular criteria, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, ratings from 20 to a 60 percent can be assigned where there are incapacitating episodes due to intervertebral disc syndrome. 38 C.F.R. § 4.71a, DC 5243. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The General Formula directs raters that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note 1.
Prior to March 1, 2016, the Board concludes that the Veteran would qualify for no more than a 10 percent rating. During his June 2014 VA examination, the Veteran reported that he experienced daily tightness and pain in his lower back area and at times his back seemed to "lock up". Upon examination the Veteran exhibited forward flexion of 65 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that the Veteran experienced no muscle spasm or guarding that caused an abnormal gait or abnormal spinal contour. Additionally, the examiner found no muscle atrophy and no ankylosis. Based on this testing, the Veteran would qualify for no more than a 10 percent rating based on forward flexion to 65 degrees.
For the period since March 1, 2016, the Veteran's L5-S1 anterolithesis, spondylosis with muscle spasms is rated at 20 percent disabling. The Board finds that a rating in excess of 20 percent is not warranted. The Veteran was afforded a new VA examination in April 2016, where he exhibited forward flexion of 60 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The Veteran exhibited pain on examination, however the examiner noted that it did not result in or cause functional loss. The examiner found that the Veteran's muscle spasms did not result in an abnormal gait or abnormal spinal contour. Additionally, the examiner noted that the Veteran exhibited normal muscle strength, no localized tenderness, no guarding, and a negative straight leg raise test. Based on this testing, the Veteran would qualify for no more than a 20 percent rating based on forward flexion to 60 degrees.
Finally, there is no indication that the Veteran has been prescribed periods of bed rest at any point during the appeal. Specifically, both the June 2014 and April 2016 VA examiners noted that the Veteran had no radiculopathy or IVDS. While the Veteran reported that he experienced flare ups with prolonged standing, walking, or sitting the record does not reflect that the Veteran experienced any incapacitating episodes in the past 12 months. As such, an increased rating based on incapacitating episodes is not for application.
When evaluating the extent of a Veteran's spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a), Note 1.
In this regard, the results of the Veteran's reflex and sensory testing during his June 2014 and April 2016 VA examinations were normal. Both examiners noted that the Veteran's neurological exam and muscle strength testing was normal. Additionally, no other neurological abnormalities were noted. Therefore, a separate evaluation is not warranted.
When considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, while the Veteran complains of muscle spasms, daily tightness and pain in his lower back, and flare-ups with prolonged standing, walking, and sitting, the additional functional loss caused by the pain is taken into account for his range of motion measurements and severity of radicular symptoms. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance).
The Board has also considered the Veteran's statements that his spine disability is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his spine according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
On the other hand, such competent evidence concerning the nature and extent of the Veteran's spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.
After taking into account the Veteran's subjective complaints as well as his VA examinations, the Board concludes that an increased rating is not warranted.
ORDER
Prior to March 1, 2016, a rating in excess of 10 percent for L5-S1 anterolithesis, spondylosis with muscle spasms is denied.
From March 1, 2016, a rating in excess of 20 percent for L5-S1 anterolithesis, spondylosis with muscle spasms is denied.
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B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs